What are the Legal Consequences of Dover?

[swamidass (S. Joshua Swamidass)]

Continuing the discussion from David MacMillan: Ham's Ark Embraces Evolution:

@David_MacMillan

I’m planning on starting law school next fall, yes, but I’ve worked in law firms for over a decade. The legal aspects of the whole creationism nonsense are of particular interest to me.

So, here is an exchange we are still curious about.

@swamidass

Judge Jones’s decision is legally binding only for school districts in the middle district of Pennsylvania.

@Mung you are really missing the point. Perhaps we can talk a lawyer with expertise here to do an office hours to explain. The reason DI opposed Dover is because it was guaranteed to lead to this disastrous ruling for them, setting the precedent that ID = Creationism (from a legal sense). The ruling was only about Dover, but it was in Federal court, and counts as precedence for the whole country. This the de facto legal reality until they go back to Federal court someday and get a ruling that goes the other way.

@Patrick

No, this is the de facto legal reality forever, it can’t go back to Federal Court ever, it is precedent and has force of law forever. The same applies to same sex marriage and slavery. Can’t be revisited.

@swamidass

That is not true. Courts can rule against precedent. They do all the time.

@Patrick

No they don’t. FFRF had a recent case at the 9th Circuit Court of appeals. The judges wanted to go against percent in a lower court in a different part of the country but couldn’t. They even said that they would have ruled against the precedent but couldn’t. I am not a constitutional lawyer but I think this is somehow in the constitution. Nonetheless, Dover is permanent.

This is really important today as many Christians believe that if they can get the right judges on the Supreme Court that they can get same sex marriage reversed or Roe vs. Wade reversed. The legal reality is that they can’t just revisit it and over turn precedent.

@swamidass

Yeah, that doesn’t make sense.to me. But neither fo us are lawyers. Let’s wait till we find one, and pick it up with them.

@David_MacMillan (or anyone else with legal knowledge), can you help us untangle this not? Thank you. Maybe @CaseyLuskin might help us too.

[T_aquaticus]

Precedents have been overturned before, so it isn’t impossible. However, there needs to be a really good reason to do so, and I don’t see ID making it over this hurdle.

The path forward for ID is pretty simple. Convince scientists and have ID become the consensus position. This will result in ID having secular purpose and it will easily pass the Lemon test.

[David_MacMillan]

Precedent can absolutely be overturned, but it would be challenging to do so. Stare decisis is strongly held within the federal court system and only a very specific set of circumstances could lead to the defeat of Dover.

The most likely vector for overturning Dover would be a local attempt to promote intelligent design which was then challenged in the courts. The attempt would need to be made such that the legal challenge differed in some material way from the legal issues present in Dover. It would appeal up to a separate court of appeals, and that court would then consider Dover.

The most favorable outcome for ID proponents would be that the secondary court would issue an ambiguous or split ruling – e.g., “This case differs from Dover on points A, B, and C, but it is similar to Dover on points D and E. We concur with Dover on point D but disagree on point E.” Either party could then appeal to the SCOTUS, asking for the ambiguity to be clarified.

This whole affair would be very unlikely, though. You’d need a ridiculously partisan court to get any direct challenge to Dover past the early stages.

[AllenWitmerMiller (Retired Professor & Minister.)]

@David_MacMillan

Precedent can absolutely be overturned, but it would be challenging to do so. Stare decisis is strongly held within the federal court system and . . .

Linguist’s note:

For those unfamiliar with the legal term, Stare decisis is Latin for “to stand by things already decided" (or, translating the plural ablative more rigidly, “to stand according to decided-things”.) Obviously, it commonly refers to legal precedents.

[Dan_Eastwood]

@AllenWitmerMiller

For those unfamiliar with the legal term, Stare decisis is Latin for “to stand by things already decided" …

so, NOT a staring contest, got it!

[AllenWitmerMiller (Retired Professor & Minister.)]

@Dan_Eastwood

so, NOT a staring contest, got it!

With some of the Supreme Court’s split-decisions, one wonders if there has been a glaring contest.